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Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, and Why and How Mental Disability Law Developed As It Did Michael L

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Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, and Why and How Mental Disability Law Developed As It Did Michael L digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1999 Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, and Why and How Mental Disability Law Developed as It Did Michael L. Perlin New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Part of the Disability Law Commons, and the Jurisprudence Commons Recommended Citation 10 Journal of Contemporary Legal Issues 3-36 (1999) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. "Half-Wracked Prejudice Leaped Forth": Sanism, Pretextuality, and Why and How Mental Disability Law Developed as it Did MICHAEL L. PERLIN* I. INTRODUCTION If we are to come to grips with the roots of why and how mental disability law jurisprudence developed as it has, it is absolutely essential that we come to grips with two forces-sanism and pretextuality-that utterly dominate and drive this area of the law.' The papers in this symposium issue-about how we construct "craziness,"2 the therapeutic potential of the civil commitment hearing,3 the meaning of "dangerousness," 4 how we construct competence,5 the application of the Americans with Disabilities Act to persons with mental disabilities,6 the * Professor of Law, New York Law School. 1. See generally MICHAEL L. PERLIN, THE HIDDEN PREJUDICE: MENTAL DISABILITY ON TRIAL (forthcoming 1999). 2. Stephen J. Morse, Crazy Reasons, 10 J. CONTEMP. LEGAL ISSUES 189 (1999). 3. Bruce J. Winick, Therapeutic Jurisprudence and the Civil Commitment Hearing, 10 J. CONTEMP. LEGAL ISSUES 37 (1999). 4. Grant H. Morris, Defining Dangerousness:Risking a DangerousDefinition, 10 J. CONTEMP. LEGAL ISSUES_61 (1999). 5. Elyn R. Saks & Stephen Behnke, Competency to Decide on Treatment and Research: MacArthur and Beyond, 10 J. CONTEMP. LEGAL ISSUES 103 (1999). 6. Susan Stefan, The Americans with DisabilitiesAct and Mental Health Law: Issues for the Twenty-first Century, 10 J. CONTEMP. LEGAL ISSUES 131 (1999). ways in which mediation and alternative dispute resolution may offer a fresh approach to "the culture of argumentation," and how that affects mental disability law,7 deceptions in forensic testimony, 8 the transfer of juvenile cases to "adult court,"9 the use of psychiatry as a tool of governmental oppression,' 0 and the legal relationship between the diagnosis of antisocial personality disorder and the death penalty -all reflect, in both explicit and implicit ways, 12 the pernicious effects of sanism and pretextuality on the full range of mental disability law issues. I believe it is impossible to truly understand the jurisprudence in any of these areas without first understanding sanism and pretextuality."3 What do I mean by these terms? Simply put, "sanism" is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry.14 It infects both our juris- prudence and our lawyering practices. 5 Sanism is largely invisible and largely socially acceptable. It is based predominantly upon stereotype, myth, superstition, and deindividualization, and is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in 7. David B. Wexler, Therapeutic Jurisprudenceand the Culture of Critique, 10 J. CONTEMP. LEGAL ISSUES 263 (1999). 8. Ansar Haroun & Grant H. Morris, Weaving a Tangled Web: The Deceptions of Psychiatrists,10 J. CONTEMP. LEGAL ISSUES 227 (1999). 9. Christopher Slobogin, Treating Kids Right: Deconstructing and Reconstructing the Amenability to Treatment Concept, 10 J.CONTEMP. LEGAL ISSUES 299 (1999). 10. Richard J. Bonnie & Svetlana V. Polubinskaya, Unraveling Soviet Psychiatry, 10 J.CONTEMP. LEGAL ISSUES 279 (1999). 11. Charles M. Sevilla, Anti-Social Personality Disorder: Justification for the Death Penalty?, 10 J.CONTEMP. LEGAL ISSUES 247 (1999). 12. See infra text accompanying notes 131-47. 13. See PERLIN, supra note 1, ch. 5. 14. The classic treatment is GORDON W. ALLPORT, THE NATURE OF PREJUDICE (1954). For an important new, and different, perspective, see ELISABETH YOUNG- BRUEHL, THE ANATOMY OF PREJUDICES (1996). See generally PERLIN, supra note 1, ch. 2 (discussing roots of sanism and the relationship between sanism and other "ismic" behavior, such as racism, sexism, and homophobia); Michael L. Perlin, On "Sanism", 46 SMU L. REv. 373 (1992). 15. The phrase "sanism" was, to the best of my knowledge, coined by Dr. Morton Birnbaum. Morton Birnbaum, The Right to Treatment. Some Comments on its Development, in MEDICAL, MORAL AND LEGAL ISSUES IN HEALTH CARE 97, 106-07 (Frank J. Ayd ed., 1974) [hereinafter Bimbaum, Comments]. See infra text accompanying note 24; Koe v. Califano, 573 F.2d 761, 764 (2d Cir. 1978); Michael L. Perlin, Competency, Deinstitutionalization, and Homelessness: A Story of Marginalization,28 Hous. L. REv. 63, 92-93 (1991) (discussing Birnbaum's insights). [Vol. 10: 3, 1999] Half-Wracked Prejudice THE JOURNAL OF CONTEMPORARY LEGAL ISSUES 16 everyday life and in the legal process. "Pretextuality" means that courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (and frequently meretricious) decisionmaking, specifically where witnesses, especially expert witnesses, show a "high propensity to purposely distort their testimony in order to achieve desired ends."' 7 This pretextuality is poisonous; it infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blas6 judging, and, at times, perjurious and/or corrupt testifying. The title of my paper comes from Bob Dylan's anthemic masterpiece, My Back Pages (best known by its chorus, "I was so much older then/I'm younger than that now"). I use the key lyric--"half-wracked prejudice leaped forth"-because I am convinced that sanism and pretextuality reflect a specific kind of corrosive prejudice that is at the roots of so much that is mental disability law.' 8 The line is from the second verse of the song, which begins: Half-wracked prejudice leaped forth "Rip down all hate," I screamed Lies that life is black and white Spoke from my skull I dreamed ....9 16. See, e.g., MICHAEL L. PERLIN, THE JURISPRUDENCE OF THE INSANITY DEFENSE (1994). 17. Michael L. Perlin, Morality and Pretextuality, Psychiatry and Law: Of "Ordinary Common Sense," Heuristic Reasoning, and Cognitive Dissonance, 19 BULL. AM. ACAD. PSYCHIATRY & L. 131, 133 (1991). See also Charles M. Sevilla, The Exclusionary Rule and Police Perjury, 11 SAN DIEGO L. REV. 839, 840 (1974) (discussing fabricated police testimony). 18. At a recent conference of the National Association of Rights, Protection and Advocacy (NARPA), in response to a paper I presented critiquing the quality of counsel in cases involving questions of mental disability law, Judi Chamberlin-a well-known advocate for the rights of persons perceived to be mentally disabled, see ,e.g., JUDI CHAMBERLIN, ON OUR OWN (1978); Judi Chamberlin, The Ex-Patient's Movement, I J. MIND & BEHAV. 324 (1990); Judi Chamberlin & Joseph A. Rogers, Planning A Community-Based Mental Health System: Perspective of Service Recipients, 45 AM. PSYCHOLOGIST 1241 (1990)-questioned why there is even a special body of law called "mental disability law," noting that there is no such topic as "dermatology law." (Comment from audience, Nov. 20, 1998). I have given Ms. Chamberlin's question much serious thought, and am convinced that both sanism and pretextuality need to be understood if her question is to be legitimately answered. 19. BOB DYLAN, LYRICS, 1962-1985 (1985), at 139. Typical of Dylan's lyrics, this verse is not without ambiguity. But it is clear to me that its main themes-that prejudice leads to hatred; that the world is not "black and white"; that our thoughts and our behaviors are largely driven by unconscious forces-are the same themes that explain sanist and pretextual behavior on the parts of courts, legislators, lawyers, expert witnesses, and all other players in the mental disability law arena. This article will proceed in the following manner. First, I will explain the roots of my interest in these forces and explain how I came to apply them to mental disability law. Next, I will define the key principles and try to illuminate how they dominate this discourse. I will then examine the other papers in this special issue and try to show how these principles explain much of what would otherwise be incoherent in mental disability law. Finally, I will offer some modest suggestions and conclusions for future generations of mental disability law scholars to ponder. II. THE ROOTS To a great extent, my interest in these phenomena began at two separate points in time, both in the 1970s. As a "rookie" Public Defender in Trenton, New Jersey, I often filed motions to suppress evidence on behalf of my clients in criminal cases, arguing that the police behavior in seizing contraband (usually small amounts of "street drugs") violated the Fourth Amendment's ban on "unreasonable searches and seizures." In almost all of these cases, the arresting officer's testimony was basically the same: he would testify that, when my client saw him coming, my client made a "furtive gesture," and then reached into his pocket, took out a glassine envelope (filled with the illegal drug), and threw it on the ground, blurting out, "That's heroin [or whatever], and it's mine." My client-not surprisingly-told a different story: that the policeman approached him, stuck his hands into my client's pockets, pulled out the glassine envelope, and then placed my client under arrest. I had no doubt that my client was telling the truth. I suspected that the judge and the prosecutor had the same intuition.
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